mentality of a foreign state which is covered in subsection (b). There is a hierarchy in the methods for serving process under subsection (a). Paragraph (1) provides for service in accordance with any special arrangement which may have been agreed upon between a plaintiff and the foreign state or political subdivision. If such an arrangement exists, service must be made under this method. The purpose of subsection (a)(1) is to encourage potential plaintiffs and foreign states to agree by contract for a procedure on service of process. If no special arrangement exists, subsection (a)(2) provides two alternative methods of service. The first method, set forth in subparagraph (A), involves the transmittal of "a letter rogatory or a request" for ultimate service in a foreign country. This method is currently provided under Rule 4(i)(B), F.R. Civ. P., for service on nonresident defendants. The Department of State has the authority to transmit letters rogatory from a court in the United States to authorities in foreign countries, under 28 U.S.C. 1781(a)(2). The transmittal of letters rogatory or requests may also be governed by international agreements such as the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents, supra. Service under a letter rogatory or request under such international agreements would be "directed by an authority of the foreign state" within the meaning of subparagraph (A).

The alternative method, set forth in subparagraph (B), is for service by mail on the foreign minister or other official in charge of the foreign affairs of the foreign state. This method is based on Rule 4(i)(D), F.R. Civ. P.

Subsection (a)(3) provides, as a method of last resort, service through diplomatic channels. It is applicable only if 60 days have elapsed since service was initiated under any method provided in subsections (a)(1) or (2) and if proof of service has not been made.

However, the method for direct service through diplomatic channels cannot be resorted to in every case. One situation where it is available is where the claim is against a foreign state arising from an act of a diplomatic or consular representative of a foreign state. Such acts might include the entering into a contract to construct an embassy or a consulate, or a traffic accident caused by a diplomatic or consular representative acting within the scope of his employment for which the foreign state is liable under the doctrine of respondent superior. Not included are personal claims against diplomatic or consular representatives as individuals, which again are not covered by this statute.

The only other situations where this method of direct service through diplomatic channels may be resorted to are set forth in subparagraphs (B) and (C) of subsection (a)(3). A list maintained by the Secretary of State and published in the Federal Register shall be conclusive evidence of whether a foreign state may be subject to service through diplomatic channels under subparagraphs (B) or (C).

In those cases where direct service may be made through diplomatic channels, the transmittal of a copy of the summons and complaint with translation by diplomatic note will in itself constitute service. This is to be distinguished from the transmittal of a letter rogatory by the Department of State, which is simply an administrative step leading to the ultimate service in a foreign country under the direction of a foreign authority, usually a foreign court.

(b) Service on Agencies or Instrumentalities. Subsection (b) of Section 1608 provides the methods under which service shall be made upon an agency or instrumentality of a foreign state, as defined in Section 1603(b). Again, service must always be made in accordance with any special arrangement for service between a plaintiff and the agency or instrumentality. If no such arrangement exists, then service must be made under subsection (b)(2) which provides for service upon officers, or managing, general or appointed agents in the United States of the agency or instrumentality.

If there is no special arrangement and if the agency or instrumentality has no representative in the United States, service may be made under one of the three methods provided in subsection (b)(3). The first two of these methods, provided in subparagraphs (A) and (B), are identical to methods applicable to service on a foreign state or political subdivision under subsection (a)(2).

The third method, in subparagraph (C), authorizes a court to fashion a method of service, for example under Rule 83 F.R. Civ. P., provided the method is "consistent with the law of the place where service is to be made." This latter language takes into account the fact that the laws of

foreign countries may prohibit the service in their country of judicial documents by process servers from the United States. It is contemplated that no court will direct service upon a foreign state by appointing someone to make a physical attempt at service abroad, unless it is clearly consistent with the law of the foreign jurisdiction where service is to be attempted. It is also contemplated that the courts will not direct service in the United States upon diplomatic representatives, Hellenic Lines Ltd. v. Moore, 345 F.2d 978 (D.C. Cir. 1965), or upon consular representatives, Oster v. Dominion of Canada, 144 F. Supp. 746 (N.D.N.Y. 1956), aff'd 238 F.2d 400 (2d Cir).

(c) When Service is Made. Subsection (c) of Section 1608 establishes the time when service shall be deemed to have been made under each of the methods provided in subsections (a) and (b).

(d) Time to Answer or Reply. Subsection (d) of Section 1608 gives each foreign state, political subdivision thereof or agency or instrumentality of a foreign state or political subdivision up to 60 days from the time service is deemed to have been made in which to answer, file a responsive pleading or other reply to a pleading or counterclaim. This corresponds to similar provisions applicable in suits against the United States or its officers or agencies. Rule 12(a), F.R. Civ. P.

(e) Default Judgments. Subsection (e) of Section 1608 provides that no default judgment may be entered against a foreign state, or its political subdivisions, agencies or instrumentalities, "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." This is the same requirement applicable to default judgments against the United States Government under Rule 55(e), F.R. Civ. P. In determining whether the claimant has established his claim or right to relief, it is expected that courts will take into account the extent to which the plaintiff's case depends on appropriate discovery against the foreign state. Once the default judgment is entered, notice of such judgment must be sent in the manner prescribed for service of process in Sections 1608(a) or (b).

Special note should be made of two means which are currently in use in attempting to commence litigation against a foreign state. First, the current practice of attempting to commence a suit by attachment of a foreign state's property would be prohibited under Section 1609 in the bill, because of foreign relations considerations and because such attachments are rendered unnecessary by the liberal service and jurisdictional provisions of the bill. See the analysis to Section 1609.

A second means, of doubtful validity, involves the mailing of a copy of the summons and complaint to a diplomatic mission of the foreign state. Section 1608 precludes this method so as to avoid questions of inconsistency with Section 1 of Article 22 of the Vienna Convention on Diplomatic Relations, 23 UST 3227, TIAS 7502 (1961), which entered into force in the United States on December 13, 1972. Subsequent to the introduction of S. 566 and H.R. 3493, 93rd Cong. 1st Sess., several foreign governments brought to the attention of the Department of State that the drafters of the Vienna Convention had construed Article 22 as prohibiting the service of any process or writ, "even by post, within the premises of a diplomatic mission." The United States has formally acknowledged this view. See 71 Dept. of State Bulletin 458-59 (1974). Service on an embassy by mail would be precluded under this bill. Section 1609. Immunity from Attachment and Execution of Property of a Foreign State.

As in the case of Section 1604 of the bill with respect to jurisdiction, Section 1609 states a general proposition that the property of a foreign state, as defined in Section 1603(a), is immune from attachment and from execution, and then exceptions to this proposition are carved out in Sections 1610 and 1611. Here, it should be pointed out that neither Section 1610 nor 1611 would permit an attachment for the purpose of obtaining jurisdiction over a foreign state or its property. For this reason, Section 1609 has the effect of precluding attachments as a means for commencing a lawsuit.

Attachment of foreign government property for jurisdictional purposes has been recognized "where under international law a foreign government is not immune from suit" and where the property in the United States is commercial in nature. Weilamann v. Chase Manhattan Bank, 21 Misc. 2d 1086, 192 N.Y.S. 2d 469 (Sup. Ct. N.Y. 1959). Even in such cases, however, it has been recognized that property attached for jurisdictional purposes cannot be re

tained to satisfy a judgment because, under current practice, the property of a foreign sovereign is immune from execution.

Attachments for jurisdictional purposes have been criticized as involving United States courts in litigation not involving any significant U.S. interest or jurisdictional contacts, apart from the fortuitous presence of property in the jurisdiction. Such cases frequently require the application of foreign law to events which occur entirely abroad.

Such attachments can also give rise to serious friction in the United States foreign relations. In some cases, plaintiffs obtain numerous attachments over a variety of foreign government assets found in various parts of the United States. This shotgun approach has caused significant irritation to many foreign governments.

At the same time, one of the fundamental purposes of this bill is to provide a long-arm statute that makes attachment for jurisdictional purposes unnecessary in cases where there is a nexus between the claim and the United States. Claimants will clearly benefit from the expanded methods under the bill for service of process on a foreign state (Section 1608), as well as from the certainty that such service will, under Section 1330(b) of the bill, confer personal jurisdiction over a foreign state in Federal courts as to every claim for which the foreign state is not entitled to immunity. The elimination of attachment as a vehicle for commencing a lawsuit will ease the conduct of foreign relations by the United States and help eliminate the necessity for determinations of claims of sovereign immunity by the State Department. Section 1610. Exceptions to Immunity from Attachment or Execution.

Section 1610 sets forth circumstances under which the property of a foreign state is not immune from attachment or execution to satisfy a judgment. Though the enforcement of judgments against foreign state property remains a somewhat controversial subject in international law, there is a marked trend toward limiting the immunity from execution.

A number of treaties of friendship, commerce, and navigation concluded by the United States permit execution of judgments against foreign publiclyowned or controlled enterprises (e.g., Treaty with Japan, April 2, 1953, Art. 18(2), 4 UST 2063, TIAS 2863). The widely ratified Brussels Convention for the Unification of Certain Rules relating to the Immunity of State-Owned Vessels, April 10, 1926, 196 L.N.T.S. 199, allows execution of judgments against public vessels engaged in commercial service in the same way as against privately owned vessels. Although not a party to this treaty, the United States follows a policy of not claiming immunity for its publicly owned merchant vessels, both domestically, 46 U.S.C. 742, 781, and abroad, 46 U.S.C. 747; 2 Hackworth, Digest of International Law, 438-39 (1941). Articles 20 and 21 of the Geneva Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958 (15 UST 1606, TIAS 5639), to which the United States is a party, recognize the liability to execution under appropriate circumstances of state-owned vessels used in commercial service.

However, the traditional view in the United States concerning execution has been that the property of foreign states is absolutely immune from execution. Dexter and Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (2d Cir. 1930). Even after the "Tate Letter" of 1952, this continued to be the position of the Department of State and of the courts. See, Weilamann v. Chase Manhattan Bank, 21 Misc. 2d 1086, 192 N.Y.S.2d 469, 473 (Sup. Ct. N.Y. 1959). Sections 1610(a) and (b) are intended to modify this rule by partially lowering the barrier of immunity to execution, so as to make this immunity conform more closely with the provisions on jurisdictional immunity in the bill.

(a) Execution Against Property of Foreign States. Section 1610(a) relates to execution against property of a foreign state, including a political subdivision, agency or instrumentality of a foreign state. The term "attachment in aid of execution" is intended to include attachments, garnishments and supplemental proceedings available under applicable Federal or State law to obtain satisfaction of a judgment. See Rule 69, F.R. Civ. P. The property in question must be used for a commercial activity in the United States. If so, attachment in aid of execution, and execution, upon judgments entered by Federal or State courts against the foreign state would be permitted in any of the circumstances set forth in paragraphs (1)-(5) of Section 1610(a).

Paragraph (1) relates to explicit and implied waivers, and is governed by the same principles that apply to waivers of immunity from jurisdiction under

Section 1605(a)(1) of the bill. A foreign state may have waived its immunity from execution inter alia by the provisions of a treaty, a contract, an official statement, or certain steps taken by the foreign state in the proceedings leading to judgment or to execution. As in Section 1605(a)(1), a waiver on behalf of an agency or instrumentality of a foreign state may be made either by the agency or instrumentality or by the foreign state itself.

Paragraph (2) of Section 1610(a) denies immunity from execution against property used by a foreign state for a commercial activity in the United States, provided that the commercial activity gave rise to the claim upon which the judgment is based. Included would be commercial activities encompassed by Section 1605(a)(2). The provision also includes a commercial activity giving rise to a claim with respect to which the foreign state has waived immunity under Sections 1605(a)(1). In addition, it includes a commercial activity which gave rise to a maritime lien with respect to which an admiralty suit was brought under Section 1605(b). One could, of course, execute against commercial property other than a vessel or cargo which is the subject of a suit under Section 1605(b), provided that the property was used in the same commercial activity upon which the maritime lien was based.

The language "is or was used" in paragraph (2) contemplates a situation where property may be transferred from the commercial activity which is the subject of the suit in an effort to avoid the process of the court. This language, however, does not bear on the question of whether particular property is to be deemed property of the entity against which the judgment was obtained. The courts will have to determine whether property in the custody of an agency or instrumentality is property of the agency or instrumentality, whether property held by one agency should be deemed to be property of another, whether property held by an agency is property of the foreign state. See Prelude Corp. v. Owners of F/V Atlantic, 1941 A.M.C. 2651 (N.D. Čalif.); American Hawaiian Ventures v. M.VJ. Latuharhary, 257 F. Supp. 622, 626 (D.N.J. 1966).

Paragraph (3) would deny immunity from execution against property of a foreign state which is used for a commercial activity in the United States and which has been taken in violation of international law or has been exchanged for property taken in violation of international law. See the analysis to Section 1605(a)(3).

Paragraph (4) would deny immunity from execution against property of a foreign state which is used for a commercial activity in the United States and is either acquired by succession or gift or is immovable. Specifically exempted are diplomatic and consular missions and the residence of the chiefs of such missions. This exemption applies to all of the situations encompassed by Sections 1610(a) and (b): embassies and related buildings could not be deemed to be property used for a "commercial" activity as required by Section 1610(a); also, since such buildings are those of the foreign state itself, they could not be property of an agency or instrumentality engaged in a commercial activity in the United States within the meaning of Section 1610(b).

Paragraph (5) of Section 1610(a) would deny immunity with respect to obligations owed to a foreign state under a policy of liability insurance. Such obligations would after judgment be treated as property of the foreign state subject to garnishment or related remedies in aid or in place of execution. The availability of such remedies would, of course, be governed by applicable State or Federal law. Paragraph (5) is intended to facilitate recovery by individuals who may be injured in accidents, including those involving vehicles operated by a foreign state or by its officials or employees acting within the scope of their authority.

(b) Additional Execution Against Agencies and Instrumentalities Engaged in Commercial Activity in the United States. Section 1610(b) provides for execution against the property of agencies or instrumentalities of a foreign state in circumstances additional to those provided in Section 1610(a). However, the agency or instrumentality must be engaged in a commercial activity in the United States. If so, the plaintiff may obtain an attachment in aid of execution or execution against any property, commercial and noncommercial, of the agency or instrumentality, but only in the circumstances set forth in paragraphs (1) and (2).

Paragraph (1) denies immunity from execution against any property of an agency or instrumentality engaged in a commercial activity in the United States, where the agency or instrumentality has waived its immunity from execution. See the analysis to paragraph (1) of Section 1610(a).

Paragraph (2) of Section 1610(b) denies immunity from execution against any property of an agency or instrumentality engaged in a commercial activity in the United States in order to satisfy a judgment relating to a claim for which the agency or instrumentality is not immune by virtue of Section 1605(a)(2), (3) or (5), or 1605(b). Property will be subject to execution irrespective of whether the property was used for the same commercial or other activity upon which the claim giving rise to the judgment was based.

Section 1610(b) will not permit execution against the property of one agency or instrumentality to satisfy a judgment against another, unrelated agency or instrumentality. See Prelude Corp. v. Owners of F/V Atlantic, 1941 A.M.C. 2651 (N.D. Calif.). There are compelling reasons for this. If United States law did not respect the separate juridical identities of different agencies or instrumentalities, it might encourage foreign jurisdictions to disregard the juridical divisions between different U.S. corporations or between a U.S. corporation and its independent subsidiary. However, a court might find that property held by one agency is really the property of another. See the analysis to Section 1610(a)(2).

(c) Necessity of Court Order Following Reasonable Notice. Section 1610(c) prohibits attachment or execution under Sections 1610(a) and (b) unless the court has issued an order for such attachment and execution. In some jurisdictions in the United States, attachment and execution to satisfy a judgment may be had simply by applying to a clerk or to a local sheriff. This would not afford sufficient protection to a foreign state. This subsection contemplates that the courts will exercise their discretion in permitting execution. Prior to ordering attachment and execution, the court must determine that a reasonable period of time has elapsed following the entry of judgment, or in cases of a default judgment, since notice of the judgment was given to the foreign state under Section 1608(e). In determining whether the period has been reasonable, the courts should take into account procedures, including legislation, that may be necessary for payment of a judgment by a foreign state, which may take several months. Courts should also take into account representations by the foreign state of steps being taken to satisfy the judgment.

(d) Attachments Upon Explicit Waiver to Secure Satisfaction of a Judgment. Section 1610(d) relates to attachment against the property of a foreign state, or of a political subdivision, agency or instrumentality of a foreign state, prior to the entry of judgment or prior to the lapse of the "reasonable period of time" required under Section 1610(c). Immunity from attachment will be denied only if the foreign state, political subdivision, agency or instrumentality has explicitly waived its immunity from attachment prior to judgment, and only if the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, etc., in the same action. This subsection provides, in cases where there has been an explicit waiver, a provisional remedy to prevent assets from being dissipated or removed from the jurisdiction in order to frustrate satisfaction of a judgment.

Section 1611. Certain Types of Property Immune from Execution.

Section 1611 exempts certain types of property from the immunity provisions of Section 1610 relating to attachment and execution.

(a) Property Held by International Organizations. Section 1611(a) precludes attachment and execution against funds and other property of certain international organizations. The purpose of this subsection is to permit international organizations designated by the President pursuant to the International Organizations Immunity Act, 22 U.S.C. 288 et seq., to carry out their functions from their offices located in the United States without hinderance by private claimants seeking to attach the payment of funds to a foreign state; such attachments would also violate the immunities accorded to such international institutions. See also Art. 9, Section 3 of the Articles of Agreement of the International Monetary Fund. International organizations covered by this provision would include, inter alia, the International Monetary Fund and the World Bank. The reference to "international organizations" in this subsection is not intended to restrict any immunity accorded to such international organizations under any other law or international agreement.

(b) Central Bank Funds and Military Property. Section 1611(b)(1) provides for the immunity of central bank funds from attachment or execution. It